Appellate Review under the New Felony Sentencing Guidelines: Where Do We Stand 47 Cleveland State Law Review 1999

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47 Clev. St. L. Rev. 533 (1999)
Appellate Review under the New Felony Sentencing Guidelines: Where Do We Stand

handle is hein.journals/clevslr47 and id is 543 raw text is: APPELLATE REVIEW UNDER THE NEW FELONY
SENTENCING GUIDELINES: WHERE DO WE STAND?
MARK P. PAINTER'
I. SENATE B ILL 2 ..................................................................... 537
II. FRAM EW ORK ....................................................................... 538
III. WHERE Do WE STAND? ...................................................... 539
A. Abuse-of-Discretion Standard ..................................... 541
B. The Plain-Language Approach .................................... 543
IV . W HAT'S N EXT? .................................................................... 545
V . A FTERW ORD ........................................................................ 546
When allegedly comprehensive new legislation is enacted, courts often struggle
to define the parameters of the new laws. Terms undefined by the legislature need
defining. The policies behind the laws need explanation. And standards of review
need to be clarified. Inevitably, the new laws will cause some confusion in the
courts-a confusion that may linger for many years.
Effective July 1, 1996, the Ohio legislature revised the state's felony-sentencing
guidelines. Previously, there were almost no guidelines, only maximum and
sometimes minimum penalties for offenses. The new legislation, which is
commonly referred to as Senate Bill 2,2 has received much attention in the courts.
Scores of cases have interpreted various aspects of the guidelines. As might be
expected, these interpretations have not been entirely consistent.
A case from the Ohio First District Court of Appeals in Hamilton County, on
which I am a judge, illustrates some of the different interpretations of the new
guidelines. The case, State v. Mushrush, involved Christopher Mushrush, an
eighteen-year-old with a drug problem.3 On April 23, 1998, he took a handful of
pills, flipped out, and somehow ended up at a talent show at Oak Hills High School
in Cincinnati. In his drug-induced state, he released pepper spray into a crowd of
about four hundred people.4
As the cloud of spray spread through the auditorium, the crowd began to panic
and rush to the exits. The spray affected two people in the crowd. One, a sixteen-
year-old named Amanda Hartmian, got the spray in her eyes and had difficulty
'Mark P. Painter, Judge, Ohio First District Court of Appeals, 1995-; Adjunct Professor of
Law, University of Cincinnati College of Law, 1990-; Judge, Hamilton County Municipal
Court, 1982-95; B.A., University of Cincinnati, 1970; J.D., University of Cincinnati College
of Law, 1973. The author gratefully acknowledges the editorial assistance of Richard J.
Schaen, Esq.
2Am. Sub. S.B. 2; see also Am. Sub. S.B. 269 (amending Senate Bill 2).
3State v. Mushrush, 733 N.E.2d 252 (Ohio Ct. App. 1999); discretionary appeal not
allowed, 716 N.E.2d 1168 (1999).
4d. at 255.